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By Deng D'Akiyooi - 8 Oct 2018

Opinion: Will the Hybrid Court for South Sudan Work at the moment?

Many organizations and powerful countries around the world such as the United States, Norway, UK, and Canada are pushing to have the hybrid court for South Sudan to tried suspect of war crimes and crimes against humanity committed in past 5 years of civil war. However, the court system in South Sudan is based and mixed of South Sudanese customary law and few international law clauses.

 The Establishment of the hybrid court in South Sudan has not seen the light of day due who is in charge of the establishment of the court, lack of understanding between the current government and the African Union (AU) and on whether the sitting heads of state and an elected official can be indicted for any crime during their tenure? Nevertheless, such provisions not allowed under the constitution of South Sudan.

On the other hand, holding African leaders accountable for their misdeed is always questionable and not often supported by the AU. Even though many World leaders feel, like the establishment of the Hybrid court is crucial and it might in end to the violent conflict in South Sudan. Such claims are yet to be researched or might be in limbo.

In searching for peace and countability the African Union Commission (AUC) launched a campaign to called restoration of the dignity of women and children with an aim to bring about "accountability of serious crimes of international concern in South Sudan. two years ago,” This campaign was organized by women of South Sudan to lobby for accountability and an end to the atrocities that have disproportionately affected South Sudanese women. The AU Special Envoy on Women, Peace, and Security Bineta Diop mentioned that "The outcomes of the campaign will be presented to high-ranking South Sudanese officials".

Although the issue of accountability has been heckled as a key element for achieving peace and reconciliation in South Sudan, the main question remains unclear. whether the envisaged hybrid court for South Sudan can try sitting leaders and senior government officials who are believed to have committed and commanded the atrocities in the country.

Such questions are always difficult to be answered and are always seen as policies of regime change. Michael Makuei Lueth who doubles as Information Minister and as the Government spokesperson criticized the international community for pushing for the establishment of the hybrid court South Sudan. "There are people pressing for it, especially the Troika because they have not abandoned the policy of regime change," He said. “The hybrid court is an instrument that they want to use against the leadership of South Sudan because the agreement gives the hybrid court the right to indict anyone at any time,” He continued that "they are trying to selectively target South Sudan politicians through the hybrid court.

 “After having found that all these have failed, they came up with the idea of the hybrid court,” He concludes. International NGO such as Human Rights Watch, the United Nations Human Rights Council and Amnesty International believed that to ensure accountability and end the violence in South Sudan, Leaders must be engaged, and their role could always play a huge part of this. However, South Sudanese leaders seem not to be interested in that either and they are dragging their feet. Dateline missed: As the peace agreement signed in Addis Ababa in April 2016, the MoU, had the mandate and the jurisdiction of the establishment of the hybrid court. which was to be finalized within six months of the formation of the government of national unity. This means that the deadline has already expired and not being paid attention following the replacement of Riek Machar with longtime friend, Mr. Taban Deng Gai as vice president of the government of national unity. Lack of support from AU. Although Chapter 5 of the Addis Ababa peace agreement mentioned that the hybrid court ‘shall not be impeded or constrained by any statutes of limitations or the granting of pardons, immunities or amnesties. No one shall be exempt from criminal responsibility because of their official capacity as a government official, an elected official or claiming the defense of superior orders.’ The AU leaders seem not to be interested in that article either. As a result of a lesson learned from over the years following the international Criminal court indictment and arrest warrant for President Omar Al Bashir in 2009.

This has eventually resulted in the AU leaders have developed immunity principle’s mechanism for their sitting heads of states and senior government officials. They also decided to the inclusion of an immunity clause in Article 46A of the 2014 Protocol on Amendments to the Protocol on the Statute of the African Court of Justice and Human Right. In addition, they have also directly indicated it in Article 46A bis of the amended protocol stipulates that ‘no charges shall be commenced or continued before the court against any serving AU head of state or government or anybody acting, or any entitled to act in such capacity, or other senior state officials based on their functions, during their tenure of office’. Furthermore, they are also expanded their notion of immunity of protecting their leaders, when they were calling for a collective withdrawal from the ICC based on the differences over immunity and concerns that the ICC targets Africa which led to Burundi, South Africa withdrawal, and also the Gambia have recently indicated that they will be withdrawing from the ICC. SPLA in Government has the Power. Many may be asking how far can the AU or the international community be holding South Sudanese leaders accountable for the atrocity committed in South Sudan? As par peace deal is concerned, how can the same leaders who are also tasked of bringing peace into their country, and at the same be tried by at the hybrid court? why are they are also made to occupy leadership positions in the transitional government of national unity, if they will be at the court? Isn’t the international community confusing the people of South Sudan? Also, isn't the international community not making the same mistake they did in Madagascar when the international community supported an election in 2013 without the candidacy of former presidents Marc Ravalomanana and Andry Rajoelina, who were then believed to the key divisive leaders in the country following the 2009 political crisis when Rajoelina staged a coup against Ravalomanana with the support of the military and opposition parties? If so, isn't the government not correct by rejecting the establishment of the hybrid court of South Sudan? If the deal signed in Khartoum and Addis Ababa by the South Sudanese leaders puts them back in the positions, how they are expected to oversee the establishment of the Hybrid Court in South Sudan? Accountability is not being supported by the IGAD leader. There are substantial that evidence that shows that the inter-governmental Agency on Development any other agencies are not much interested in the accountability part in South Sudan's conflict. Simply because there are lacks regional support for the establishment of the hybrid courts or any instructions any a deterrence's mechanism against the South Sudanese leaders who orchestrated or who are furthering the ongoing violence in South Sudan. If not, why are the same leaders’ tasks of bringing peace at the same time being accused? It should be known that any establishment of the hybrid court for South Sudan will only and end up prosecuting lesser officials and soldiers. And, it will also be just scapegoats for the President Slava Kiir Mayardit and his Vice President Riek Machar's factions. As a matter of facts, the trial of lesser official has already been witnessed when the government of South Sudan, through its accused soldier in a military court, and convicted 60 soldiers for murdering civilians and looting in Juba in July 2016, terrain hotel case. Although the international community had welcomed such move, "We applaud the victim for appearing at trial. We hope this proceeding is a first step towards addressing the much larger problem of impunity for serious human rights crimes in South Sudan," said Joanne Mariner, senior crisis adviser at Amnesty International. Such moves are just for showcase and targeting of the small fish. The international should not be confusing South Sudanese but they should only help them to find the amicable solution peacefully then beating the drum of establishing Hybrid Court. The Hybrid court will not work at this time because the country is deeply divided and it does seriously need peace then accountability at the movement.

The author is an adviser on International Criminal Law & Human Rights and can be reached at 

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